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DISTRICT COURT OF QUEENSLAND
Solomon v Queensland Police Service  QDC 224
PATRICIA NERI SOLOMON
QUEENSLAND POLICE SERVICE
APPEAL NO: 156/19
Magistrates Court, Cairns
8 November 2019
6 November 2019
Morzone QC DCJ
CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – assault, assault – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether sentence manifestly excessive.
Justices Act 1886 (Qld) s 222, s 223(1) & 227.
Penalties and Sentences Act 1992 (Qld) s 9, s 13, s 43B.
AB v R (1999) 198 CLR 111
Allesch v Maunz (2000) 203 CLR 172.
Dwyer v Calco Timbers (2008) 234 CLR 124.
Forrest v Commissioner of Police  QCA 132.
Fox v Percy (2003) 214 CLR 118.
Gronow v Gronow (1979) 144 CLR.
Green v The Queen (2011) 244 CLR.
Kentwell v R (2014) 252 CLR 60.
Lowe v The Queen (1984) 154 CLR 606.
Lovell v Lovell (1950) 81 CLR 513 at 519.
Postiglione v The Queen (1997) 189 CLR 295.
Teelow v Commissioner of Police  QCA 84.
Warren v Coombes (1979) 142 CLR 531.
White v Commissioner of Police  QCA 121.
R v Lomass (1981) 5 A Crim R 230
R v McIntosh  St R Qd 278.
R v Morse (1979) 23 SASR 98.
R Logan for the Appellant
P Nevard for the Respondent
Aboriginal and Torres Trait Legal Service for the Appellant
The Office of Director of Public Prosecutions for the Respondent
- On 7 August 2019 the appellant was convicted after pleading guilty in the Magistrates Court held in Cairns, of common assault, assault occasioning bodily harm and stealing. The appellant was sentenced to three, six and one month imprisonment terms each to be served concurrently by way of an intensive correction order. The court also made a two year no contact order pursuant to s 43B of the Penalties and Sentences Act 1992 (Qld).
- The appellant now appeals his convictions/sentence.
- Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.
- The undisputed facts were contained in a schedule of facts accompanied by a series of photographs and text messages.
- The appellant, with the help of her sister and co-offender, Ms Solomon, were trying to locate her ex-defacto partner, Mr Hunter, and his new partner Ms Madden (who were former partners themselves). The appellant was pregnant to Mr Hunter at the time.
- The appellant sent a series of text messages to Hunter and Madden, which escalated in their vitriol and aggression as she became progressively frustrated by their refusal to reveal their whereabouts. The appellant and her co-offender managed to locate the complainants at a motel, and went to confront them. The appellant and her co-offender knocked on the door of the motel room but the complainants did not respond.
- The appellant and her co-offender waited nearby until the complainants finally left the room.
- When Hunter and Madden were at the foot of the stairs, the appellant and her co-offender attacked them. The appellant punched Mr Hunter about three or four times in the head causing him to drop his bags, and she then upended the bags onto the ground, all the while verbally abusing him. He managed to decamp with his small child. (count 1).
- Simultaneously, the appellant’s co-offender confronted Ms Madden and punched her in the face with a closed fist, causing her to fall on the staircase. The appellant later joined her co-offender and stood over Ms Madden and aggressively verbally abused her, while the co-offender continued to punch and kick Ms Madden. Ms Madden suffered bruising to her face and back. (count 2)
- The defendant then upended the contents of Ms Madden’s bags and stole $200 as in the aftermath of the co-offender’s attack. (count 3)
- The appellant made some statement against her interest when she later participated in a formal record of interview.
Grounds of Appeal
- The appellant appeals against the sentence in reliance on the grounds that it was manifestly excessive because the sentencing magistrate erred by:
- Mischaracterising the timing of the appellant’s plea on charge 2;
- Mischaracterising the appellant’s role; and
- Imposing a sentence of unjustified disparity between the appellant’s sentence and that imposed upon the co-offender.
Mode of Appeal
- The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Section 222(1) relevantly provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
- Pursuant to section 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,” and thereby resulting in a manifestly excessive sentence.
- The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.
- Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.
Appeal against Sentence
- This court ought not interfere with a sentence unless it is manifestly excessive, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.
- Manifest excess is typically revealed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases.
- Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence. In that context, it may be vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
- The High Court held in House v. The King that:
"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
- The High Court in Kentwell v R held:
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
Timing of Plea
- The appellant asserts that the learned magistrate mischaracterising the timing of the appellant’s plea on charge two.
- While the learned magistrate identified that there was co-operation in respect to count 1 and 3, for count 2 be referred to the plea of guilty as the “latest possible plea” on the eve of the hearing and where the matter could have proceeded earlier as a contested plea. In the course of the hearing his Honour remarked: “She could quite easily have said ‘I am guilty of these offences, however, I am going to challenge, I am going to contest some of the facts’ and it would have proceeded on that basis, but it did not.”
- In my respectful opinion, the learned magistrate misconstrued the events leading to the plea. The chronology can be summarised as follows:
- A brief of evidence was ordered to be served by 12 June 2019 and summary trial of charge 2 was set for 8 July 2019;
- The brief of evidence was available for collection on 11 June 2019;
- On 20 June 2019, the appellant made a submissions offering to plead guilty to the contested charge 2 on the basis that the facts were amended to remove any physical violence by the appellant vis-à-vis Ms Madden;
- On 4 July 2019 the prosecutor accepted the submission, and informed the court that the matter has resolved, and sought a long plea listing in lieu of the trial. The request was granted on 5 July 2019.
- At the outset of the sentence hearing the prosecutor sought an amendment to the original charge of assault occasioning bodily harm simpliciter to the aggravated offence of assault occasioning bodily harm in company. The defendant pleaded forthwith and the sentence proceeded on the agreed facts.
- It seems to me that the prosecution’s amendment negated the prospect that the matter could have proceeded as a contested plea, and the plea ought to have been recognised as an early plea in the chronological context.
- In the result, in my respectful opinion the learned magistrate, allowed the mischaracterisation to affect him, and thereby failed to take into account the material consideration of the timing of the appellant’s plea for Charge 2 in accordance with s 13 of the Penalties and Sentences Act 1992 (Qld).
Role & Blameworthiness
- The appellant argues that the learned magistrate mischaracterised the appellant’s role as more serious than the role of her co-accused for the second charge, which resulted in an unjustifiably disparate sentence to that of appellant’s co-offender and sister.
- During sentencing the learned magistrate characterised the appellant as being the “principal in respect of this criminal enterprise” and referred to the appellant’s pre-offending conduct of sending “appalling text messages,” making “threats” and “over a long period of time taken it upon yourself, seen as you were as jilted ex-partner, to track down and secure retribution on both” complainants. His Honour continued: “You successfully did that, madam, having located them, endeavouring to contact them, when they refused to come out of the apartment, to lay in wait and ambush them in the carpark”. His honour characterised the appellant’s conduct as occurring “over a relatively prolonged period of time. It was premeditated. You sought them out. You acted on threats made at least two days earlier”.
- It seems to me that the frequency and tone of the appellant’s escalating phone calls and text messages were commensurate with the her frustration of being stonewalled about the male complainant’s whereabouts in the circumstances of her pregnancy. The agreed facts do not reveal how the appellant cam to locate the complainants, or elaborate her attempts to rouse them from the motel room. It seems that the offenders’ decision to lay in wait was opportunistic, and the appellant’s violent reaction towards Mr Hunter was spontaneous. There is no evidence of any planned attack Ms Madden by the co-offender, but it is sufficient that the appellant returned to encourage and participate by being present and yelling abuse at Ms Madden in the heat of the moment. And finally, the stealing was opportunistically though callous.
- Considering the whole of the circumstances, it seems to me that the appellant’s offending was opportunistic as she reacted and adapted to the evolving events within a short time. It was neither premeditated nor planed over a long period of time to effect retribution on the complainants.
- In my respectful opinion, the leaned magistrate, ascribed an unnecessary gloss on the circumstances leading up the offending as some premeditated plan over a long period of time to effect retribution after ambushing the complainants.
- The appellant contends that the learned magistrate imposed a sentence of unjustified disparity in comparison to her co-offender sentence of 100 hours community service with no conviction recorded for Count 2.
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”
- In Postiglione v The Queen, Dawson and Gaudron JJ said:
“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the cooffenders in question and their different degrees of criminality.”
- The learned magistrate was alive to the relevant matters of parity having carefully broached the matter during the hearing.
- Whilst the appellant and co-offender were similarly aged with had no criminal history, their roles, there were relevant and significant differences between them.
- The co-offenders had very different roles in the common offending subject of charge two - the co-offender was the aggressor vis-à-vis Ms Madden by launching the initial attack independent of the appellant who was engaged with Mr Hunter; the appellant returned after Ms Madden was grounded; the appellant stood over Ms Madden yelling abuse but did not did not join in with the co-offender. Only the co-offender continued as the aggressor and continued punching and kicking Ms Madden on the ground. It stark contrast, the factual basis of the co-offender’s sentence differed in a very critical way. There the court proceeded on basis the appellant returned to join in the co-offender’s attack by also punching and kicking Ms Madden on the ground. This alone significantly eroded the utility of the co-offender’s sentence.
- Further, the appellant was the principal motivator for the overall confrontation and drew the protectionist support of the co-offender in her cause. The appellant’s criminality spanned three offences, whereas her co-offender faced only one. There were also distinguishing features going to the offenders’ co-operation, timing of pleas, ages and antecedents. The co-offender demonstrated compelling grounds for not recording a conviction.
- The parties referred me to several cases of: R v Kelley  QCA 18; R v Taylor  QCA 311; Quatermass v Police  QDC 169; R v Neivandt  QCA 224; R v Middleton and Johns  QCA 92; R v Lude; R v Love  QCA 319; and La Carta v Commissioner of Police  QDC 68. After considering each case in light of my findings about the co-offenders’ respective roles and criminality, I find those cases of little comparative assistance. In the main they focus on the sentencing range for main offenders of various ages committing assaults occasioning bodily harm in company in different circumstances. At best, they demonstrate that the sentence of the co-offender was very lenient had she’d been sentenced on the same facts now before this court.
- Having regard to the co-offenders’ different degrees of criminality and their different circumstances, things were far from equal, and the relevant discrepancies justify a degree of proportionate disparity between their respective sentences for the assault occasioning bodily harm in company.
- In my respectful view, the learned magistrate, allowed his view about the appellant’s overall role, and the timing of the plea, to guide and affect him on matters of parity to reach a sentence outside the permissible range for charge 2.
- The appellant incidentally points to other relevant factors as affecting the learned magistrate’s exercise of the sentencing discretion:
- There was a failure to give specific regard to the applicant’s steps in rehabilitation by virtue of her undergoing counselling;
- There was no consideration by the learned magistrate that the appellant had cooperated with authorities by making admissions to the offending conduct;
- There was a failure to give specific consideration to whether a pregnant and single mother of an infant could properly comply with the terms of an Intensive Correction Order; and
- There was a failure to consider charge 3 as an offence which is punishable by imprisonment as a last resort.
- These matters were all the subject of submission and likely within the contemplation of the magistrate in the sentence although not expressly mentioned in the sentencing remarks. The learned magistrate referred to the agreed factual basis for the sentence included parental, relationship and pregnancy matters. He was clearly cognisant that imprisonment as being a last resort for charge 3 by acknowledging that charges 1 and 2 were offences of violence and consequently imprisonment is not of last resort.
Manifestly Excessive Sentence
- For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by:
- Misconstruing the circumstances leading up the offending as evidencing a premeditated plan over a long period of time to effect retribution after ambushing the complainants;
- Failed to take into account the material consideration of the timing of the appellant’s plea for Charge 2 in accordance with s 13 of the Penalties and Sentences Act 1992 (Qld).
- Allowing these matters to guide and affect him on matters of parity in respect of charge 2 – assault occasioning bodily harm in company.
- The appellant submits that her offending conduct was objectively less serious and her role, antecedents, rehabilitation, and the principals of parity support a community based order, without a conviction recorded. On the contrary, the respondent argues the sentence imposed upon the appellant (regardless of any error) is not manifestly excessive, and even if a community based order was made, a bare possibility that the conviction might affect employment prospects are not sufficient to warrant no record of conviction.
- It seems to me that identified errors do strike at the heart of the proper exercise of the sentencing discretion resulting in a sentence that was too high out outside the permissible range, and a different sentence should be passed especially for charge 2.
- Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion afresh.
- The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act 1992 (Qld). For the offence of stealing (charge 3), it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable. However, that does not apply for the violent offences (charges 1 and 2). The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.
- It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature and seriousness of the appellant’s offending is borne out of frustrated vengefulness in the context of a complex relationship breakdown attended by the appellant’s emotive but uncharacteristic decompensating state and reckless violence in the heat of the moment of final confrontation. It is particularly serious that the appellant and her co-offender lay in wait before a surprise attack against her estranged partner, carried out the offending for count 2 in company, and displaced a callous indifference for charge 3.
- I also take into account the timing and circumstances of her plea of guilty, and her co-operation with police and prosecution to bring the matter to a timely conclusion as the earliest opportunity after appropriate submission.
- The appellant is an indigenous woman with six siblings. Her extended family grew with her mother’s indigenous cultural adoption and mainstream foster care arrangements. She was 28 years old at the time of the offending and was 29 when originally sentenced. She has an unblemished life with no criminal history. She is a single parent caring for her 11 month old child, and is now about 8 months pregnant, both fathered by Mr Hunter with whom she had an ‘on again, off again relationship’. The appellant has completed year 12, holds a Certificate II in Business administration and has undertaken in-house management course while working. She has worked in various positions with Woolworths and a Telstra Business Centre, as well as undertaken work in tourism, resorts and hospitality. She is held in high regard by those who have worked with her as evidenced by one reference.
- The appellant has taken significant steps to address her offending. She left her job to move to Townsville and thereby distance herself form the complainants. She has acted on the initiative to attend personal counselling therapy, and is on the waiting list with Centrecare for the Woman’s Anger Management program. She currently she lives with her mother and receives of Centrelink support while she settles and concentrates on parent duties and the impending birth.
- Since there is likely to be further parenting responsibilities involving the appellant and Mr Hunter into the future, I think the no-contact order made with the consent of the appellant out remain unless reviewed to facilitate appropriate parenting arrangements.
- I’ve considered the risk of physical harm, to community if custodial sentence is not imposed and the need to protect the community from that risk, which I find is very low. I see no utility in a sentence of imprisonment and I think that a probation order of 9 months was just and appropriate and warranted in all the circumstances.
- The appellant has already served about 3 months of intensive correction order imposed by the court below, including than 75 hours of community service, which is likely to have been more difficult in her stage of pregnancy. I take this into account and substitute a probation order for a period of 6 months.
- As to whether to record a conviction, I have had regard to all circumstances of the case, the nature of the offence and the appellant’s otherwise demonstrable good character, solid history, unblemished record, and age. Having regard to the nature and extent of her community involvement and work I think that convictions will unduly impact on her economic or social wellbeing, and chances of finding employment. As to the later, I do not accept that is merely bare possibility that the conviction might affect her employment prospects. Her secondary education, tertiary qualifications, and her vocational achievements are likely to see her in gainful employment in secured and trustful environments with vulnerable people and children. The circumstances here warrant that a conviction not be recorded.
- For these reasons, I allow the appeal, set aside the orders made by the magistrates court and substitute the following orders:
- Appeal allowed.
- The two year restraining order made on 7 August 2019 pursuant to s 43B of the Penalties and Sentences Act 1992 (Qld) is affirmed.
- Otherwise, the sentence and orders of the Magistrates Court made in Cairns on 7 August 2019 are set aside, and substituted with the following sentence:
- (a)The appellant is on probation released under the supervision of an authorised Corrective Services Officer at Townsville for a period of 6 months and subject of the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld).
- (b)I order that she report to authorised corrective services officer in by 5:00 pm on Monday 11 November 2019.
- (c)No conviction is recorded for each offence.
Judge DP Morzone QC
 Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, , McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 5.
 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
 White v Commissioner of Police  QCA 12, -; Forrest v Commissioner of Police  QCA 132, 5 & 6; McDonald v Queensland Police Service  QCA 255, .
 R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh  St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.
 Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.
 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519
 (1936) 55 CLR 499, 504 and 505
 Kentwell v R (2014) 252 CLR 60, , adopting AB v R (1999) 198 CLR 111,  per Hayne J (minority).
 Green v The Queen (2011) 244 CLR 462 at 473.
 Lowe v The Queen (1984) 154 CLR 606.
 Postiglione v The Queen (1997) 189 CLR 295 at 301-302.
- Published Case Name:
Solomon v Queensland Police Service
- Shortened Case Name:
Solomon v Queensland Police Service
 QDC 224
Morzone QC DCJ
08 Nov 2019